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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Irma E. v. State, Dept. of Health & Social Services, Office of Children's Services (11/22/2013) sp-6841

Irma E. v. State, Dept. of Health & Social Services, Office of Children's Services (11/22/2013) sp-6841, 312 P3d 850

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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IRMA E.,                                              )  

                                                      )        Supreme Court No. S-15003  

                           Appellant,                 )  

                                                      )        Superior Court Nos.  

         v.                                           )        3PA-11-00019/00020 CN  


STATE OF ALASKA,                                      )        O P I N I O N  

DEPARTMENT OF HEALTH &                                )

SOCIAL SERVICES, OFFICE OF                            )        No. 6841- November 22, 2013

CHILDREN'S SERVICES,                                  )


                           Appellee.                  )  


                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Palmer, Vanessa White, Judge.  

                  Appearances:    Irma  E.,  pro  se,  Wasilla,  Appellant.    Andy  


                  Harrington,  Assistant  Attorney  General,  Fairbanks,  and  

                  Michael      C.    Geraghty,   Attorney          General,       Juneau,     for  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  BOLGER, Justice.  

----------------------- Page 2-----------------------



                    Irma  E.  asked  the  State  Office  of  Children's  Services  to  place  her  


                                                                                   Irma then repeatedly asked the  

granddaughters with her, but OCS denied her request. 

superior court to hold a hearing to review OCS's decision,  but the superior court denied  


Irma's requests for a hearing.  Based on AS 47.14.100(m), we conclude that a family  

member who has been denied placement of a child in OCS's custody is entitled to a  

review hearing to contest the OCS placement decision.  



                    In January 2011, OCS took emergency custody of Irma's granddaughters,  


Nadia and Tia.  The girls had been living with Irma, their maternal grandmother, while  


Nora, their mother, was homeless. OCS removed the girls from Irma's home because of  


allegations  that  Irma's  son  had  been  sexually  abusing  his  own  daughters  and  had  


sexually abused his younger sister when she was a minor.  OCS was concerned because  


Irma allowed her son to remain in the home with Nadia and Tia after learning that he was  

being  investigated  by  law  enforcement  officials  for  sexually  abusing  children.    The  


superior court ultimately determined that the girls were children in need of aid based on  


Nora's  stipulation  that  they  had  been  placed  at  risk  of  sexual  abuse.    After  several  

placements the girls were placed with a non-relative foster family.  

                    Sometime before April 25, 2012, Irma asked OCS to place the girls with  


her.  OCS denied Irma's request, stating that she had an unspecified prior history with  


their agency.  Irma filed a request for a "review hearing on placement denial" with the  


superior court, using a form provided by the court system.  She alleged that OCS's action  


was in error, and she offered to "show proof of this with audio and video."  On July 3,  

2012, the superior court denied Irma's request by checking a box on the request form  

          1         Pseudonyms are used for all family members and foster parents.  

                                                              -2-                                                           6841  

----------------------- Page 3-----------------------


marked "DENIED.  Good cause for a review hearing has not been demonstrated."  The  

court did not otherwise explain its decision.  

                     Irma apparently renewed her request with OCS, because on October 5,  


2012, OCS sent her another denial letter.  This letter listed numerous reasons for OCS's  


denial,  including  concerns  that  Irma's  personality  "place[s]  her  at  risk  to  fail  to  


appropriately  protect  the  children."                       The  letter  referenced  Irma's  "co-dependent  


relationship with her adult children" including Nora, which in OCS's opinion rendered  


Irma's assurance that she would ensure the safety of her grandchildren "highly suspect."  


                     On October 22, 2012, Irma filed a request with the superior court for a  


hearing on OCS's denial of her latest request for placement, again using a form provided  


by the court system.  Irma alleged that OCS's denial was in error; she claimed to be in  

possession of new evidence, and she again offered to prove her point "with audio and  


video."  In addition, she asserted that OCS employees had misused their power, broken  


the law, and lied.  OCS had opposed Irma's earlier request for a hearing but filed a non- 


opposition to Irma's second request and itself requested "the opportunity to set the record  

straight at a contested hearing."  


                     On November 8, 2012, the superior court began a trial to determine whether  


to terminate Nora's parental rights to Nadia and Tia.  The court had intended to take up  


Irma's placement request on that date, but it did not do so because it had neglected to  

notify the parties.  However, the court informed the parties that it intended to deny Irma's  

request  for  a  hearing  and  that  its  sole  reason  for  considering  a  hearing  was  OCS's  


request.  The superior court then denied  Irma's request for a hearing on the record,  


suggesting that Irma could renew her request if she supplied the court  with  facts to  

support her allegations against OCS.  


                     Later that month, Irma renewed her request for a review hearing, again  


using a court system form, this time supporting her request with a letter to the superior  

                                                                -3-                                                          6841

----------------------- Page 4-----------------------

court in which she averred that she was capable of protecting Nadia and Tia from Nora,  


that she had obtained a domestic violence protective order against Nora, and that she had  


banned Nora from her home.  On December 17, 2012, the superior court denied Irma's  


request by checking the box on the request form that indicated, "DENIED.  Good cause  

for a review hearing has not been demonstrated."  


                     Irma appealed to this court. We granted OCS's motion for a limited remand  


to allow the superior court to enter findings and conclusions in support of its decision to  

deny Irma's request for a hearing.  


                     The superior court found that: (1) at the time of the girls' removal Irma was  


aware of the sexual abuse allegations against her son yet she continued to allow Nadia,  


Tia, and her son to reside together in the home; (2) Irma was uncooperative with OCS  


when the girls were removed; (3) Nora opposed Irma's request that the girls be placed  


with Irma; (4) Irma orchestrated the failure of the girls' foster placement by relaying to  


the foster parents threats that Nora had made from jail, and Irma's motivation had been  


to advance her prospects of having the girls placed with her; (5) Irma lacks insight into  


the girls' needs and into the harm her actions have caused the girls; and (6) Irma has a  


co-dependent relationship with Nora, which would cause any placement of the girls with  

Irma to be "confusing and destabilizing" to the girls.  


                     In its conclusions of law, the superior court stated that it agreed with OCS's  


denial of Irma's request for placement because of Irma's "apparent failure to protect the  


two girls at the time of removal, coupled with her previous conduct that had resulted in  


[an]  OCS  investigation,  and  culminating  with  her  manipulation  of  the  girls'  foster  

placement and their mother to achieve her own ends."  


                     The main issue on appeal is whether the superior court properly denied  


Irma's request for a hearing to review the OCS decision to deny Irma's request that her  

granddaughters be placed with her.   

                                                                 -4-                                                          6841

----------------------- Page 5-----------------------



                   This case requires us to interpret the child in need of aid statutes, which we  


do  by  applying  our  independent  judgment,  adopting  the  rule  of  law  that  is  most  

persuasive in light of precedent, reason, and policy.2  


         A.	       Alaska Law Provides An Adult Family Member Who Has Been Denied  

                   Placement Of A Child The Right To A Review Hearing.  

                   Alaska law has long demonstrated a preference that children who are in  


OCS's custody be placed with family members.  Before 2005, AS 47.14.100(e) provided  


that OCS could deny a request for placement by a child's "relative by blood or marriage"  


only after making "a determination, supported by clear and convincing evidence, that  

                                                                                                                   3   A  


placement of the child with the relative will result in physical or mental injury." 

relative whose request for placement was denied by OCS had the right to de novo review  


of OCS's ruling by the superior court.4  


                   In 2005 and 2006 the legislature amended AS 47.14.100(e) to provide, in  

relevant part, that when a child is taken into OCS's custody OCS must place the child,  


"in the absence of clear and convincing evidence of good cause to the contrary," (1) in  

the least restrictive setting that most closely approximates a family and that meets any  

special  needs  of  the  child,  (2)  within  reasonable  proximity  to  the  child's  home,  


considering any preferences of the child and the parents and any special needs of the  

         2         Brynna B. v. State, Dep't of Health & Soc. Servs. ,  88 P.3d 527, 529 (Alaska  

2004) (citing S.S.M. v. State, Dep't of Health & Soc. Servs.,   3 P.3d 342, 344 (Alaska  


         3         Former AS 47.14.100(e) (2004).  The term "relative by blood or marriage"  

was not defined.  

         4	        Id.  

                                                           -5-	                                                   6841

----------------------- Page 6-----------------------


child, (3) "with, in the following order of preference, (A) an adult family member; (B)  



a family friend . . .; (C) a licensed foster home . . .; (D) an institution for children . . . ." 

                        The amended subsection did not include the provision for de novo superior  


court review of OCS's denial of a request for placement.  Instead, the legislation created  


a new subsection, AS 47.14.100(m), which provides that when OCS "denies a request  


for placement  with an adult family member or a family friend, the department shall  


inform the adult family member or family friend of the basis for the denial and the right  

to request a hearing to review the decision."6  

                        Thus, the legislature placed the burden on OCS to justify its denial of an  


adult family member's request for placement.  If a judicial review hearing is requested,  


OCS must demonstrate that its decision is supported by clear and convincing evidence.  


The legislature gave a family member the right to request such a hearing, but did not  

impose a burden on the family member to show good cause.  


                        The superior court in this case denied Irma's request for a hearing because  


of factual findings it made based on OCS's adjudication petition, log notes from the  


temporary custody and adjudication hearings, Nora's stipulations that the girls were  

children in need of aid (which were not Irma's stipulations), and Irma's testimony during  

            5           The 2005 rewrite of the subsection required OCS to make "a showing of   

good cause to the contrary" when denying an adult family member's or a family friend's       

request for placement.  Ch. 64,  34, SLA 2005.  The 2006 legislation amended the   

rewritten subsection to require OCS to have "clear and convincing evidence" of good  

cause to the contrary before denying an adult family member's or a family friend's  

request for placement.  Ch. 20,  8, SLA 2006.  

                        "Adult family member" is defined as "a person who is 18 years of age or  


older and who is (A) related to the child as the child's grandparent, aunt, uncle, or  


sibling;  or  (B)  the  child's  sibling's  legal  guardian  or  parent."    AS  47.10.990;  AS  


47.14.100(t)(1).  "Family friend" is not defined.  

            6           Ch. 64,  37, SLA 2005.  

                                                                            -6-                                                                     6841

----------------------- Page 7-----------------------


the trial to terminate Nora's parental rights.  None of these sources  provided Irma with  


the  opportunities  she  would  have  been  accorded  had  the  superior  court  held  an  


evidentiary hearing to review her claim that OCS had improperly deviated from the  

placement preferences provided by statute.  


                     To the extent that the superior court denied Irma's request for a placement  


review hearing because Irma failed to show good cause for a hearing, the court's ruling  


was in error.  On remand the superior court must provide Irma with the hearing to which  


she  is  statutorily  entitled.    At  the  hearing  OCS,  not  Irma,  will  have  the  burden  of  


demonstrating, by clear and convincing evidence, that its denial of Irma's request for  


placement  was  justified.    Irma  must  be  allowed  the  opportunity  to  confront  OCS's  

evidence against her and to present her position that OCS's decision was in error.7  

           B.        Irma's Request Does Not Involve An Adoptive Placement.  

                     The State argues that the superior court should have treated this matter as  

an  adoption  proceeding  under  AS  47.10.088(i)  rather  than  as  a  CINA  placement  


proceeding under AS 47.14.100(e).  Under AS 47.10.088(i) OCS must approve an adult  


family member's request to adopt a child "unless there is good cause not to approve the  


adoption."           Unlike  placement  requests  made  under  AS  47.14.100(e),  where  the  

           7         On appeal, the State argues, in part, that we should uphold the superior   

court's  decision  because  "[a]  substantiated   child  protection  services  history  can  

constitute evidence of good cause to bypass the adult family member priority for either         

foster  care  or  adoptive  placement,"   Irma's  "unwillingness  to  cooperate  with  OCS  

established good cause to bypass the adult family member priority for either foster care  

or adoptive placement," and " 'co-dependency' between the adult family member and  

the CINA parent(s) can constitute good cause to bypass the adult family member priority  


for either foster care or adoptive placement."  We express no opinion on the merits of  

these arguments because the factual findings required to support them were not properly  


arrived at by the superior court.  The State will have an opportunity to present evidence  


and to argue those points on remand.  

                                                                  -7-                                                            6841

----------------------- Page 8-----------------------


controlling standard is clear and convincing evidence, OCS may deny an adult family  


member's request for adoption based on a mere preponderance of evidence.    

                     The State argues that Irma's request for placement should have been treated  


as a request for adoption  for several reasons:   (1) AS  47.10.088(i) requires OCS  to  


"identify, recruit, process, and approve a qualified person or family for an adoption  


whenever a petition to terminate a parent's rights to a child is filed," and OCS filed its  

petition  to  terminate  Nora's  parental  rights  to  Nadia  and  Tia  before  Irma  asked  the  


superior court to review OCS's denial of her second and third requests for placement; (2)  


in December 2011, OCS changed its proposed permanency goal for the girls to a primary  


goal of adoption with a concurrent goal of reunification (the superior court approved this  


goal in February 2012); and (3) Irma stated in a letter to the superior court that she was  

"asking to adopt" her granddaughters.  

                     The  State  likens  this  case  to  Tununak,  where  we  determined  that  the  


superior court properly construed a placement request made in a CINA proceeding as a  

request  for  adoption.    In  that  case  we  noted  that  "even  though  the  placement  


determination took place in the context of a CINA proceeding, it is clear that the parties  

were essentially contesting - and the superior court was essentially determining -  


adoptive placement."   But important factors distinguish Tununak from the present case.  

           8         Native Vill. of Tununak v. State, Dep't of Health & Social Servs., Office of                             

Children's Servs., 303 P.3d 431, 444-45 (Alaska 2013).  The review hearing provision       

of  AS  47.14.100(m)  applies  to  requests  for  adoptive  placement  made  under  AS  

47.10.088(i) as well as to requests for CINA placement made under AS 47.14.100(e).  

           9         Id. at 443.  

                                                                   -8-                                                             6841

----------------------- Page 9-----------------------

                    In  Tununak, an adoption proceeding was pending in the superior court  


when the court determined the child's placement.                                 The child's  foster parents, with  


whom the child had been living for more than two years, had filed a petition to adopt the  



child  before  the  placement  question  was  resolved.                                The  superior  court  did  not  

consolidate the adoption and CINA cases, but it stayed the adoption proceeding pending  

resolution of the CINA placement issue and it "stated that the future adoption proceeding  


                                                                                                 12   The superior court  

would be dependent on the placement ruling in the CINA case."  


stated that the party contesting OCS's placement decision would not be allowed "two  


bites at the apple," by first contesting placement in the CINA proceeding and then, if it  



lost that challenge, by contesting placement in the adoption proceeding.                                       As we noted,  


the superior court's order "denied the Tribe's objections to adoptive  placement and  


cleared the way for the Smiths to adopt Dawn."                             Thus, it was clear in that case that the  


issue being contested at the placement review hearing was the child's placement for  


          10        Id . at 433.  

          11        Id . at 435.  

          12        Id . at 435, 443.  

          13        Id. at 443.  

          14        Id . at 439.  

          15        The  Smiths'  adoption   of   Dawn  was  finalized  a  few  months  after  the  

superior court issued its decision approving the Smiths as Dawn's placement.  Id. at 439- 

440.  We note that in an analogous case, C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001),  


a foster care placement morphed into an adoptive placement when the superior court  

terminated the parents' parental rights and the children's foster parents filed petitions to  


adopt the children.  

                                                               -9-                                                         6841

----------------------- Page 10-----------------------


                   In the present case no adoption proceeding has been initiated.  Neither Irma  

nor the girls' foster parents have filed an adoption petition or otherwise taken steps  


toward adopting the girls.  At the conclusion of the termination trial on December 5,  


2012, the superior court terminated Nora's parental rights to the girls.  At the time, the  


court approved the girls' recently changed foster family as a CINA placement, in the  

process noting that because the children had been placed with the new family for only  


a short time their placement could not yet be considered a placement for adoption.                                        On  


remand the superior court should consider Irma to have asked OCS to place the children  


with her for CINA purposes under AS 47.14.100(e), not as having asked OCS to approve  

her adoption of the children.   

          C.        The State's Remaining Arguments Are Unavailing.  

                    The State argues that res judicata or equivalent principles of finality bar  

Irma's appeal of the superior court's December 17, 2012 denial of her request for a  


hearing because Irma did not appeal from the superior court's July 3, 2012 or November  


8, 2012 denials of her requests for hearing.  But OCS did not raise this issue in the  

superior court, nor did that court rely on this reasoning when it denied Irma's second or  


third requests for hearing.    Instead, the court stated that Irma could renew her request  


if  she  provided  factual  support  for  her  allegations  of  OCS  wrongdoing,  which  she  

          16        The superior court stated that it was approving the girls' new home "as a  

permanent placement, but I don't think anybody is so cavalier or foolhardy as to think,  


well, we're going to immediately petition for adoption in this case, when the children  

have only been in that home for a few weeks."  The court noted that its decision was not  

intended as a decision on Irma's placement motion, which was not yet ripe. At a hearing  


in January 2013 the superior court noted that adoption continued to be the appropriate  


permanency goal for the girls, but that its decision whether their existing placement was  


appropriate for adoption remained months away.  

          17       Indeed, OCS itself requested a judicial hearing on Irma's second request  

for placement.  

                                                            -10-                                                       6841

----------------------- Page 11-----------------------

claimed to have done later that month.  In addition, OCS's denial of Irma's second  

request for placement was based on different considerations than its denial of her first  



request.        Thus, OCS's assertion that circumstances were unchanged from one request  

to the next conflicts with its own assertions in decisional documents.  

                     There may be some merit to the State's argument that a family member  


should not receive multiple hearings on the same placement request.  But we have noted  


that courts should proceed cautiously when applying doctrines of finality in children's  


cases because "the circumstances in a child's life are ever-changing and . . . the court's  



focus must be on the child's welfare."                        Here, Irma did not receive a review hearing on  


any of her requests. Under these circumstances, we conclude that res judicata did not bar  

Irma's most recent request for a hearing.  

                     Finally, the State argues that we should affirm the superior court's denial  


of Irma's request for a review hearing because Irma's allegations would not be sufficient  


to overturn OCS's placement decision.  We reject this argument.  As noted above, the  


burden at a placement review hearing is on OCS to justify its denial of an adult family  


member's request for placement; the burden is not on the adult family member to prove  

that OCS's denial was erroneous.   


                     Furthermore, the State incorrectly characterizes Irma's challenge to OCS's  


decision as only involving her history in an OCS case concerning children other than  

          18         OCS's letter denying Irma's first request stated as its sole ground that Irma       

had  a  "prior  CPS  history  that  was  substantiated."    Its  letter  denying  Irma's  second  

request contained a half-page recitation of grounds, including concerns about Irma's  

personality,   her   alleged   co-dependent   relationship   with   her   adult   children,   her  


willingness  and  ability  to  protect  the  children  from  Nora,  and  her  having  allegedly  

relayed to the foster parents threats that Nora had reportedly made against them.   



                    Kent V. v. State, Dep't of Health & Soc. Servs. , 233 P.3d 597, 601 (Alaska  


                                                               -11-                                                          6841

----------------------- Page 12-----------------------


Nadia and Tia.                            One of the main factors upon which both OCS and the superior court  

relied in this case was Irma's purported co-dependent relationship with Nora, and her  

perceived inability or unwillingness to protect the girls from Nora.  Irma clearly intended  


to challenge that factor when she informed the court that she had obtained a protective  


order against Nora, had banned Nora from her home, and had not allowed Nora to have  


unsupervised contact with Nadia and Tia's biological older sibling, a child whom Irma  


had adopted.                         

V.              CONCLUSION  

                                 For the foregoing reasons, we REVERSE the superior court's order denying  


Irma's request for a placement review hearing and REMAND this matter to the superior  

court with instructions to hold a hearing to review the OCS decision.  

                20              We agree with the State that the record in the present case "contains scant           

evidence about the proceedings in that separate case."  Should the parties deem such   

evidence relevant to Irma's request, they may present it to the superior court on remand.   

                21              We agree with the State that Irma did not adequately brief her summary                                                                            

argument that Nadia and Tia should be placed in Irma's home because of the presence                                                                                                 

there of the girls' biological sibling - Irma's adopted son - and we therefore decline     

to address that argument.  

                                                                                                    -12-                                                                                                       6841  

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